https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12493

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BUNGOMA** **CRIMINAL APPEAL NO. HCCRA/E047 OF 2026** **WYCLIFFE WASHIALI……………………………….……….APPLICANT** **VERSUS** **REPUBLIC………………………………………………...…RESPONDENT** **RULING** 1. This matter is coming up for a ruling on the application dated 26th June 2026 pursuant to **Articles 165(6) and (7) of the Constitution of Kenya 2010 and Sections 362 and 364 of the Criminal Procedure Code** seeking orders; 2. **Spent.** 3. **Spent.** 4. **That this Honourable Court be pleased to call for and examine the record of Bungoma Chief Magistrate’s Court Criminal Case No. 825 of 2020 for purposes of satisfying itself as to the correctness, legality and propriety of the conviction, sentence and proceedings pursuant to Articles 165(6) and (7) of the Constitution of Kenya 2010 and Sections 362 and 364 of the Criminal Procedure Code.** 5. **That upon examining the record, this Honourable Court be pleased to revise, vary and/or interfere with the sentence imposed upon the Applicant on 10th June 2026 and substitute it with such lawful and appropriate sentence as the Court shall deem fit.** 6. **That this Honourable Court be pleased to make such further or other orders as it may deem fit, just and expedient in the circumstances of this matter** 7. **That there shall be no order as to costs.** 8. The Application is premised on the grounds on the face of it and the averments of the Applicant in the Supporting Affidavit sworn on 26th June 2026. The Applicant stated that on 10th June 2026, he was convicted and sentenced by the Chief Magistrate's Court at **Bungoma in Criminal Case No. 825 of 2020**, and annexed and marked as WW-1, a copy of the Judgment and Sentence. 1. He further stated that following this conviction and sentence, he instructed his then Advocates to undertake the necessary legal measures to contest the same. Consequently, the said Advocates prepared and filed a Notice of Motion dated 18th June 2026, pursuant to **Section 357(1) of the Criminal Procedure Code**, seeking his admission to bail pending an appeal, annexed and marked as WW-2. 2. The deponent averred that after obtaining further legal advice from his current Advocates and thoroughly reviewing the High Court record, it became evident that no Petition of Appeal had ever been filed before this Honourable Court. Consequently, there was no substantive appeal upon which the Notice of Motion dated 18th June 2026 could be legitimately based. 3. He further deposed that he therefore instructed his present Advocates, M/s Wamalwa & Echesa Co. Advocates, to halt the prosecution of the aforementioned Notice of Motion, and instead to seek the Court's permission to formally withdraw the application, solely for the purpose of regularising the proceedings before this Court. The court allowed the Application. 4. The Applicant further averred that since no appeal was ever lodged, this Honourable Court retains jurisdiction under **Articles 165(6) and (7) of the Constitution together with Sections 362 and 364 of the Criminal Procedure Code** to revise the conviction and sentence imposed upon him. 5. He accordingly invokes the said revisionary jurisdiction and prays that the Court calls for and examines the record of **Bungoma Chief Magistrate's Court Criminal Case No. 825 of 2020** for purposes of satisfying itself as to the correctness, legality and propriety of his conviction and sentence. 6. In support of the substantive prayer for revision, the deponent averred that he is fifty-four (54) years of age and suffers from chronic medical conditions, namely Hypertension (HTN) and Type II Diabetes Mellitus, both of which require continuous medical review, medication and specialised management. 7. He further deposed that he is the father of six (6) children who depend upon him for their upkeep, maintenance, education and general welfare, and that his wife left their matrimonial home, the parties being presently separated, such that there is no other parent or responsible adult residing with and taking care of his children during his incarceration. 8. The deponent further averred that, prior to the pronouncement of sentence, he presented to the trial court his mitigation statement and made a partial restitution to the complainant in the amount of Kenya Shillings Seven Hundred and Fifty Thousand (Kshs. 750,000/=), which payment was acknowledged during the sentencing proceedings. 9. Furthermore, he stated that he was the subject of a Pre-Sentence Report delineating his personal circumstances, family background, health status, community ties, and other mitigating factors. He contended that these matters, taken together, constitute sufficient and compelling circumstances justifying the exercise of this Court's revisionary jurisdiction. 10. Additionally, he argued that no prejudice would be suffered by the Respondent if the orders sought were granted, and that the Application was filed promptly, in a straightforward manner, and in good faith. He respectfully submitted that the Application should be allowed as prayed. 11. During the hearing of the application, the learned counsel for the applicant reiterated the facts as already herein summarised and orally submitted that, pursuant to an order of this Court dated 30th June 2026, the Notice of Motion dated 18th June 2026 had already been abandoned, and that prayer 2 of the instant application had accordingly been overtaken by events. 12. Counsel further submitted that the court had ordered on 30th June 2026 that a Probation Officers Report be filed. That even though the applicant had not been furnished with a copy of the Probation/Pre-Sentence Report and was therefore unable to fully address the Court regarding its contents in support of the prayer for revision, he urged that the court considers the Report if already filed in reaching its determination. 13. Upon the Court's own perusal of the court file, it observed that the Probation/Pre-Sentence Report was already on record, having been filed on 22nd July 2026. Learned State Counsel appearing for the Respondent stated that the Office of the Director of Public Prosecutions did not oppose the Application. **Determination** 1. I have considered the application for review of sentence. I have taken into account the fact that the prosecution has no objection to the application. I have also considered the probation officer's report. I note that the same states that out of the 3,500,000 obtained by the applicant and his three co-accused before the trial court, the appellant on his part has and paid back Kshs. 750,000 to the complainant. The Report states that he paid this amount with the hope that the other 3 accused persons would also pay back to the complainant their portion. However, they did not. 2. The report states that indeed the complainant acknowledged receipt of the portion of Kshs. 750,000 paid by the complainant but remarked that that was very little money and also that the sentence of three years meted upon the applicant and his co-accused was very lenient and so he intended to pursue the matter by way of a civil suit. 3. By dint of the fact that the applicant states he was made effort to pay back the money, which act has indeed been acknowledged by the complainant, the Applicant is leveraging on this in seeking that the court grants him a non-custodial sentence for the reasons already herein enumerated. 4. I have considered all the above. I have also considered the Probation Officer’s Report. In noting that the said Report is positive in favour of the accused, and taking into consideration the fact that the applicant has made effort to pay back to the complainant what can be considered to be a considerable portion of the money in light of the fact that they were four accused persons who obtained a total of Ks 3,500, 000/- and everything remaining equal, each accused ought to have paid back Ks. 875,000/-, it is in my considered opinion that by this act, the Applicant deserve the court's leniency. 5. I note that he was also not given an option of a fine notwithstanding the fact that he paid this money before the sentence was passed which fact was brought to the attention of the Learned Magistrate. With this payment in place at this point in time, the sentence passed was akin to paying a fine of Ks. 750, 000/- and serving a term of imprisonment of 3 years. In this regard, I am satisfied that this is a matter that warrants the exercise of the court’s revisionary jurisdiction as pleaded by the Applicant. 6. Further, in the circumstances of this case, and based on the recommendation made in the Probation Report, and in consideration of the fact that the applicant has already paid back to the complainant an amount of Kshs. 750,000/-, I am also satisfied that the prayer for a non-custodial sentence is merited. The applicant's sentence is therefore reviewed from a term of 3 years’ imprisonment to a probation sentence of 2 years Right of Appeal within 14 days. **Read dated and Signed at BUNGOMA on 23rd July 2026** **E. OMINDE** **JUDGE**